Covert recording: is it gross misconduct?

02 / 08 / 2019

Would you consider an employee making a covert recording of an internal meeting to be an act of gross misconduct? The recent case Phoenix House v Stockman has raised this interesting point.

What was the case about?

Ms Stockman was employed by a charity, Phoenix House. She was found by the Employment Tribunal to have been unfairly dismissed.

In the Tribunal proceedings, it came to light that, during a meeting with HR, Ms Stockman had made a covert recording on her phone.

When considering how much compensation to give Ms Stockman, the Tribunal decided to reduce the amount awarded to her by 10% to take account of this conduct, as it is entitled to do.

Phoenix House appealed this decision, arguing that Ms Stockman’s compensation should be reduced to nil because if it had known about the recording, she would have dismissed for it, as making a covert recording amounted to gross misconduct. Phoenix House argued that the Tribunal should have concluded that any covert recording was a breach of the implied term of trust and confidence, as it is dishonest conduct.

What did the EAT decide?

The EAT rejected Phoenix House’s argument and upheld the Tribunal’s decision. In doing so, it considered whether an employee covertly recording a meeting necessarily commits a repudiatory breach of contract.

It concluded that an employee not disclosing that they are recording a meeting will generally amount to misconduct, but it is a question to be decided by an Employment Tribunal based on the facts before it.

Factors that ought to be taken into account include the following:

Purpose: employees may covertly record meetings for a number of reasons ranging from “the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”;

Blameworthiness: one employee may be explicitly told that they must not record a meeting, or may have told their employer that they were not recording when in fact they were, whereas another might not know or even think about whether there are rules governing recordings;

Contents: if a discussion contains highly confidential business information or another employee’s personal information, then a covert recording will be a more serious offence; and

Context: whether or not covert recording is included in an employer’s list of examples of gross misconduct may be taken into account.

In this case, Ms Stockman had only recorded one meeting which concerned her own position and did not involve the discussion of any confidential information relating to the business or another’s personal information . Her intention was not to entrap her employer, rather she made the recording because she was on her own and felt flustered, and so the EAT decided that the Tribunal had made the correct decision.

Comment

This case was in the context of deciding the level of compensation to be awarded by a Tribunal post-dismissal, but the decision is relevant to situations where an employer discovers that one of its current employees has covertly recorded a meeting. Whilst this could amount to gross misconduct, it will not always and many factors are relevant.

The decision seems to take into account the fact that times have changed. Previously, it required a great deal of effort to covertly record a meeting but with the nearly ubiquitous ownership of mobile phones, it is now easy for most people to make a recording and it is not uncommon for employees to record a meeting without saying so. Covert recordings by employees are not necessarily made to entrap or gain a dishonest advantage, rather there are a number of innocent reasons why an employee might do so and in those circumstances, a Tribunal is very likely to allow them to rely on the recording in evidence and may not consider it to be gross misconduct.

What is made clear, however, is that, as an employer, if you do wish to assert that covert recording amounts to gross misconduct, you need to list it as such in your disciplinary rules and policy so that there is no room for misunderstanding on the part of the employee. Further, it is advisable, as part of any disciplinary or grievance procedure, to require mobile phones to be switched off and not brought into any meeting, to remind the employee that any covert recording amounts to gross misconduct at the commencement of the disciplinary/grievance process, and to ask the employee to confirm that they are not recording the meeting. Failure to heed warnings and falsely saying that they are not recording would make a gross misconduct finding more reasonable (although all factors should be considered).

If an employee openly indicates that they would like to record a meeting, employers may permit the employee to do so, but will need to weigh up the employee’s reason(s) for making the recording against the potentially inhibiting effect that a recording can have on an open discussions, as well as the important issues around data protection and privacy.

Our employment and data protection teams can provide joined up advice on these issues.